An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued two decisions in this matter. A timely petition for review of these decisions was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decisions of the ALJ, and it adopts the findings and conclusions in those decisions as its own, except that it makes the following modifications:

In the decision issued on April 7, 2008, the MEMORANDUM OPINION section is deleted.

DECISION

The decisions of the administrative law judge (copies attached), as modified, are affirmed.

Dated and mailed March 31, 2010monrolo . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In her charge of discrimination, the complainant alleges that:

1. Respondent Birds Eye Foods, Inc. (Birds Eye) discriminated against her on the basis of her sex in regard to her terms and conditions of employment, and by engaging in or permitting sexual harassment; and on the basis of disability by failing to fulfill its duty of reasonable accommodation.

2. Respondent Department of Corrections (DOC) retaliated against her for engaging in a protected fair employment activity by assigning her to temporary lockup status (TLU), by issuing a conduct report, and by suspending her work release privileges.

The commission agrees with the findings of fact in the ALJ's decisions.

Briefly, the complainant was an inmate of the John Burke Correctional Center at all times relevant here.

During 2003, the complainant, who was working in the institution's kitchen assembling bag lunches, became interested in working outside the institution as part of DOC's work release program. This program is considered a privilege, and inmates are carefully screened for it. Despite what she characterizes as chronic shoulder pain, the complainant requested that the institution's health services unit clear her for participation in the work release program. Complainant was examined by a physician before and during her participation, and no work restrictions were recommended or communicated to Birds Eye.

The complainant was approved for participation in the work release program and was assigned to work second shift as a scale tender at Birds Eye. According to the complainant, she was sexually harassed by Tomas Mendez (Mendez), the migrant seasonal employee lead worker. The complainant did not report this harassment to a supervisor or any other member of Birds Eye management during the period of her employment.

The complainant requested that she be medically excused from continuing to work in the scale tender position at Birds Eye. However, the DOC physician who examined her deemed her physically able to continue working in this position.

The complainant then reported her harassment by Mendez to DOC. DOC immediately initiated an investigation. Consistent with a practice it commonly employs when an investigation will require interviewing other inmates, DOC assigned the complainant to temporary lockup (TLU) status, and placed her in the segregation unit of Taycheedah Correctional Institution. During this investigation, seven of complainant's fellow inmates told DOC that the complainant had concocted her medical excuses, and had said she was going to accuse Mendez of sexual harassment, because she no longer wanted to work at Birds Eye; and that the complainant was lying and Mendez had never engaged in the actions alleged by the complainant.

Based upon this information, DOC filed a conduct report accusing the complainant of engaging in inadequate work performance through her attempt to avoid her work release duties, and of lying. A due process hearing was held, and a decision issued finding the employee guilty of inadequate work performance but not guilty of lying. The hearing officer suspended the complainant's work release privileges for a period of 90 days.

DOC returned the complainant to her kitchen duties at the John Burke Center, as she had requested while she was working at Birds Eye. The complainant was released from custody, as scheduled, prior to the end of the 90-day work release suspension period.

Birds Eye allegations

A department investigator found no probable cause to believe that Birds Eye had discriminated against the complainant as alleged. The complainant appealed and a hearing on the issue of probable cause was held. In a decision issued on June 8, 2006, the ALJ found no probable cause, and the complainant appealed the ALJ's decision to the commission.

The standard of proof applied to the following analysis of the Birds Eye allegations is that of probable cause.

The ALJ credited the complainant's testimony that she was sexually harassed by the lead worker of the migrant seasonal employees, Tomas Mendez (Mendez), and the commission has found no persuasive reason to overturn this credibility determination.

In the absence of quid pro quo harassment, which is not alleged here, the Wisconsin Fair Employment Act (WFEA) recognizes two ways in which an employer may be liable for sexual harassment. The first is where the harassment is perpetrated by an owner or an agent of the employer who is in a position of responsibility such that it is appropriate to apply the rule of
respondeat superior and treat the actions of the agent as the actions of the employer. The other category applies to the actions of co-workers who are not considered to be agents of the employer.
See, Anderson v. MRM Elgin Corp., ERD Case No. 199804070 (LIRC, Jan. 28, 2004);
Sanderson v. Handi Gadgets Corp., ERD Case Nos. CR200201194, CR200202089 (LIRC March 31, 2005).

The ALJ held that Mendez was a coworker, not a supervisor, and should not, as a result, be considered an agent of the employer. The commission agrees. The record establishes that Mendez was not designated a supervisor or even a foreman, and his only leadership role related to providing a means for Spanish-speaking seasonal workers to communicate concerns or questions to Birds Eye management. The complainant had reason to be aware of his non-supervisory status given the information provided her during orientation that workers wearing red hats, like Mendez, were not supervisors but instead "leaders for the migrant seasonal employees." During this orientation, the complainant was also informed that supervisors, to whom any sexual harassment should be reported, wore white hats. The record shows that the complainant's two supervisors, Lyle Mathias (Mathias) and Ron Schiesl (Schiesl) wore white hats and were present during the complainant's work shifts.

Where the alleged sexual harasser is a co-worker, the co-worker's actions can only be imputed to the employer if the employer permitted the sexual harassment to occur. That is, a respondent is liable for the sexually related acts engaged in by a co-worker only if the individual informs the respondent of the harassment and the respondent fails to take appropriate action within a reasonable time.
See, Skilling-Vukich v. Swift Transportation, ERD Case No. CR200400213 (LIRC 01/31/06), citing
Krienke v. Ramada Inn Conf. Center, ERD Case No. CR200002246 (LIRC 10/29/02);
Abel v. Dunn Co. Health Care Center, ERD Case No. CR200601394 (LIRC April 21, 2009).

The record shows, as the ALJ found, that Birds Eye had no reason to be aware of the sexual harassment of complainant until she had already ceased her period of employment with them. Accordingly, the complainant failed to sustain her burden to show probable cause to believe that Birds Eye is liable for this sexual harassment.

The complainant also alleges that Birds Eye discriminated against her by failing to accommodate a disability.

The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) Has a record of such an impairment; or

(c) Is perceived as having such an impairment.

The complainant testified that, since an injury in 1987, she has suffered from chronic pain in her right shoulder. However, even if this testimony were sufficient to establish the existence of a covered impairment, in order to qualify as an individual with a disability within the meaning of the WFEA, a complainant must establish that the respondent either had reason to be aware, or perceived, that she suffered from a permanent disability at the time the subject adverse actions occurred.
See, Greco v. Snap-On Tools, ERD Case No. 200200350 (LIRC May 27, 2004).

The record does not establish this. Despite numerous opportunities to provide documentation of any work restriction during the orientation process as well as when she was performing the job, the complainant did not do so. The record shows that it was the typical practice for the John Burke Correctional Center to provide documentation of any inmate work restrictions to Birds Eye, and no such documentation was provided for the complainant. Finally, the record shows there was no reason for Birds Eye to have perceived the complainant as disabled since, according to her supervisors, she was performing the duties of the scale tender position competently and without any apparent physical problems.

Consequently, the complainant failed to sustain her burden to show probable cause to believe that she was discriminated against on the basis of disability.

Department of Corrections

A department investigator found probable cause to believe that the complainant had been retaliated against by DOC as alleged.

DOC filed a motion to dismiss the complainant's charge of retaliation for lack of subject matter jurisdiction. The ALJ denied this motion.

A hearing on the merits of complainant's retaliation allegation was conducted. The ALJ held that retaliation had not been proved.

The complainant appealed the no retaliation holding. Respondent DOC appealed the denial of its motion to dismiss for lack of subject matter jurisdiction.

The Wisconsin Fair Employment Act states as follows, as relevant here:

...111.32(7) "Employment agency" means any person, including this state, who regularly undertakes to procure employees or opportunities for employment for any other person...

111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.36, no employer, labor organization, employment agency, licensing agency, or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, or use or nonuse of lawful products off the employer's premises during nonworking hours.

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:

(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321....

(3) To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter.

DOC's motion to dismiss was based upon its contention that DOC, under the facts at issue here, did not function as an "employer, labor organization, employment agency, licensing agency, or other person" within the meaning of Wis. Stat. § 111.321. The complainant concedes that DOC was not acting as an employer, labor organization, or licensing agency, but asserts that DOC was acting as an employment agency or other person.

The ALJ held, in dismissing the motion to dismiss, that "I believe that there is merit to the argument that DOC effectively functions as an employment agency within the meaning of the Act [WFEA] when it administers its work release program."

The commission disagrees. It is not part of DOC's mission to provide workers for business enterprises. Instead, DOC develops associations with businesses willing to accept inmate workers, and places eligible inmates with these businesses for rehabilitation and other correctional purposes. In developing and implementing its work release program, DOC does not function as an "employment agency" within the meaning of Wis. Stat. § 111.32(7).

The ALJ also held that "I believe that DOC is subject to the Act as a 'person'." The commission agrees. The concept of person is a very broad one, as the commission recognized in
Olivares v. UW-Oshkosh (LIRC Oct. 23, 1973), and
Jackson v. City of Milwaukee, ERD Case No. 9230848 (LIRC Oct. 28, 1993)(disjunctive use of term "person" necessarily implies that WFEA coverage not limited to discrimination by "employers" against their own "employees"). Although DOC urges a more restrictive definition of "person," citing
Flowers v. South Central Wis. Joint Apprenticeship and Training Committee, (LIRC June 21, 1985), the definition adopted in
Flowers was specifically limited by the commission to circumstances implicating discrimination in licensing, not discrimination in employment.
See, Johnson v. Central Regional Dental Testing Services, et al., ERD Case No. 9352414 (LIRC Feb. 29, 1996).

The commission notes that DOC did not argue as part of its motion to dismiss
that the acts of retaliation alleged here (1) do not qualify as acts of "employment discrimination" within the meaning of Wis. Stat. § § 111.321 and 111.322, and the commission declines to raise that argument on its own motion.

The question then becomes whether the complainant sustained her burden to prove that DOC engaged in retaliation. The commission agrees with the ALJ that she did not.

Retaliation, like other claims of allegedly discriminatory treatment, is appropriately analyzed utilizing the general framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 5 FEP Cases 965 (1973). Initially, the complainant must present
prima facie proof of retaliation by showing that: (1) she engaged in statutorily protected activity; (2) the respondent had taken an adverse employment action; and (3) a causal connection existed between the two. Secondly, if a
prima facie case has been established, the respondent must then articulate a legitimate, nondiscriminatory reason for its actions. Third, if the respondent carries its burden of production, the complainant then must show that the respondent's asserted reasons were in fact a pretext for retaliatory conduct.

The record establishes, and it does not appear to be disputed, that the complainant engaged in a protected fair employment activity, within the meaning of Wis. Stat. § 111.322(3,) when she reported that she had been sexually harassed by Mendez.

In regard to the assignment to the TLU, the complainant failed to establish a prima facie case of retaliation because she failed to prove that she was treated less favorably than similarly situated inmates participating in an institution investigation,
i.e., failed to show that there was a causal connection between her protected activity and her assignment to the TLU.

Moreover, even if the complainant had established a prima facie case of retaliation, DOC articulated a legitimate, non-retaliatory explanation for her assignment to TLU,
i.e., its practice of separating inmates from the general population in order to preserve the integrity of an investigation. The complainant failed to establish that this explanation was a pretext for retaliation. Specifically, the record shows that, in view of the complainant's allegations of sexual harassment, and the fact that these allegations were made soon after her request to be medically excused from working at Birds Eye had been denied, it was reasonable for the DOC to conduct a thorough investigation of all of the relevant circumstances. Moreover, in view of its plan to interview several of the other inmates assigned to the work release program as a part of this investigation, it was reasonable for DOC to separate the complainant from these other inmates in order for the integrity of the investigation not to be compromised.

In regard to the issuance of the conduct report, the complainant again failed to establish a prima facie case because she again failed to show that she had been treated less favorably than similarly situated inmates. Even if she had established a prima facie case, the reason articulated by DOC,
i.e., that the information obtained from the other inmates justified the issuance of the conduct report, is legitimate and non-retaliatory on its face. The complainant failed to show that this explanation was a pretext for retaliation.

Finally, in regard to the suspension of the complainant's work release privileges, the complainant failed to show that she was treated less favorably than similarly situated inmates, and failed to establish a prima facie case of retaliation as a result. Even if she had, DOC articulated a legitimate, non-retaliatory reason for its actions,
i.e., the information available to it through its investigation and due process hearing established that the complainant had attempted to avoid her responsibilities under the work release program, and DOC decided as a result to suspend her privilege of participating in this program for a period of 90 days. The complainant failed to prove that this conclusion and decision by DOC was not reasonably justified based upon the available information.